Legislative Briefing Kit on Electronic Monitoring

March 11, 2002
ELECTRONIC MONITORING

Note: This is an abbreviated version of the Legislative Briefing Series on Electronic Monitoring; a full updated version will appear in the near future.

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 INTRODUCTION TO ELECTRONIC MONITORING IN THE WORKPLACE

Through advanced computer technology, employers can now continuously monitor employees' actions without the employee even knowing he or she is being "watched." The computer's eye is unblinking and ever-present. Sophisticated software allows every minute of the day to be recorded and evaluated. Human workers are being tracked like machines by machines:

The headset Harriette Ternipsede, a TWA airline reservations clerk, wears "can monitor the time she takes with each call, what she says to customers -- and to co-workers between calls -- and how long she takes for bathroom and lunch breaks . . . 'It's like being connected by an umbilical cord to the computer,' she says. 'There is no privacy.'" 1

"'I can't even go to the bathroom without being watched," says an AT&T operator under electronic surveillance. 'I have to put up a flag, wait my turn, sign out, sign in, and remove my flag.'" 2

"An MCI sales representative in the Midwest phones the state wage and hour board to ask how she can file a complaint against the company to collect commission money she believes is owed her. Two hours later, her supervisor grills her about the call and smugly plays a tape of the whole conversation." 3

As the country enters full speed ahead into the information age, some employers are using new technology to spy on their workers, showing a blatant disrespect for their employees' right of privacy. There is almost no limit to what an employer can do in watching its employees. An employer may tap an employee's phone line, may watch his employees through a secret camera, may read his employee's electronic mail, may search through his employee's computer files, all of this without the employee's consent. The employee does not even have to be told that they are being monitored. 

The only limit to employer surveillance comes from the Electronic Communications Privacy Act, a federal law passed in 1986. ECPA prohibits employers from deliberately eavesdropping on purely personal conversations that an employee may have at work. ECPA does not, however, prevent the employer from eavesdropping on business-related conversations, or protect purely personal communications that occur through means other than the spoken word (such as E-mail).

According to a study published in July 1993 by MacWorld, as many as 20 million Americans are subject to computer surveillance. That figure does not include those Americans who are being spied on in other ways. And according to MacWorld, only 18 percent of the companies who perform computer surveillance actually inform their employees through written policies.

Congress has considered legislation to offer privacy protection to the nation's workers. In the early 1990's, members of Congress proposed a bill that seemed acceptable to business and labor interests. The bill would probably have been passed into law, had not the November 1994 elections resulted in a conservative Congress that is completely disinterested in privacy issues.

SOME EXAMPLES OF PEOPLE WHO HAVE SUFFERED INVASIONS OF PRIVACY AT WORK:

SECRET VIDEOTAPING

Case 1 - Frank Etienne and Brad Fair were employees of the Sheraton Corporation who discovered that their employer was secretly videotaping them in the men's dressing room. Etienne had been a Sheraton employee for six years with an excellent work record when he discovered his privacy was being violated. At first, the company denied knowing anything about the secret videotaping, but then admitted videotaping, saying that it was necessary to stop employees from dealing in drugs, although there is no evidence that any drug dealing ever took place. Etienne particularly objected to both the secrecy of the videotaping, and the placing of the machine in such a private place as the men's dressing room. "I left my homeland, Haiti, to escape oppression. I never believed that something like this would happen to me in America", he said. Fair believes that secret videotaping makes for "much worse employees." "I can't imagine anyone having a good feeling about working for a company that is spying on them."

Case 2 - Gail Nelson was shocked when she found out that her employer, Salem State College, had secretly videotaped her office 24 hours a day for several months because of a suspicion that someone might be using her office after hours. Gail often had changed her clothes in her office at the end of the day, completely unaware that she was being videotaped. She was distressed that she was never notified, and that the tapes were viewed by the employer without her knowledge.

EAVESDROPPING ON EMPLOYEE E-MAIL

Case 3 - Noel Shipman and Wilfred Hearn are two Los Angeles attorneys who have represented plaintiffs Dick Flanagan, Alana Shoars, Lee Cheaney, and Glen Mosby in a case against Epson America, Inc. The plaintiffs fought against Epson's electronic eavesdropping of employee e-mail. When Alana Shoars arrived one day for work in January 1991 she saw her supervisor printing out e-mail messages between her fellow employees.

EAVESDROPPING ON EMPLOYEE VOICEMAIL

Case 4 - Michael Huffcutt was a manager with McDonald's in Rochester, New York. Huffcutt, who is married, had a romantic relationship with another McDonald's employee who worked in another location. Huffcutt and his lover often left each other romantic voice mail messages. Despite the lack of anything work-related in these messages, Huffcutt's superior made tape recordings of them which he played for other McDonald's officials and to Huffcutt's wife. When Huffcutt protested, he was fired. 

Although we have not yet been alerted to cases involving monitoring of Internet use, at least one company advertises that it provides software to employers for the purpose of monitoring website access by employees.

 MODEL ELECTRONIC PRIVACY ACT

1. Definitions

(a) the term "electronic monitoring" means the collection of information concerning employee activities or communications by any means other than direct observation, including the use of a computer, telephone, wire, radio, camera, electromagnetic, photoelectronic or photo-optical system.

(b) the term "employee" means any person who performs services for an employer in exchange for financial remuneration, including part time, leased, or former employees.

(c) the term "employer" shall mean any person, partnership, corporation, or other organization engaged in commerce, or any other person or organization which obtains the services of individuals in exchange for financial remuneration.

2. Information Which May Be Collected

(a) An employer may use electronic surveillance to collect any information so long as:

(i) The information is collected at the employer's premises and

(ii) The information is confined to the employee's work.

(iii) Exception: electronic monitoring, including security cameras, whose sole purpose and principal effect is to collect information permitted by this act is not prohibited by section (ii) because it collects some information about employees which is not confined to the employee's work.

3. General Notice

(a) Each employer which engages in any type of electronic monitoring shall provide prior written notice to all employees who may be affected. 

This notice shall provide the following:

(i) The information which is to be collected;

(ii) The means by which this information is to be collected;

(iii) The times at which the monitoring is to occur;

(iv) The location of the monitoring equipment;

(v) The use to be made of the information which is collected;

(vi) The identity of the employees who will be monitored.

(b) Exception: Where an employer has reasonable grounds to believe that employees are engaged in conduct which violates the legal rights of the employer or the employer's employees and involves significant harm to that party, and that electronic monitoring will produce evidence of this misconduct, the employer may conduct monitoring without giving notice.

(c) Where an employer's monitoring program will include the employer's customers or members of the public, the employer shall provide notice to those affected. This notice may take any form that is reasonably calculated to reach the affected parties.

4. Simultaneous Notice

(a) Employers which engage in random or periodic monitoring of employees' communications, such as telephone service observation or monitoring of electronic mail, shall inform the affected employees of the specific events which are being monitored at the time the monitoring takes place.

(b) Exception: employers who are engaged in a bona fide quality control program need not provide simultaneous notice. A bona fide quality control program is an employer program which meets the following requirements:

(i) The information collected relates to the performance of a specific defined task;

(ii) The employer has a written standard for the performance of this task;

(iii) The purpose of the program is to compare the performance of employees performing the task to the standard;

(iv) Information is collected on a reasonably equal basis regarding the performance of all employees performing the task;

(v) The affected employees are given feedback on the employer's evaluation of their performance at a time when they can reasonably be expected to remember the events upon which their evaluation is based.

5. Private Areas

No electronic monitoring shall take place in bathrooms, locker rooms, shower facilities, or other similar private areas.

6. Disclosure

Information concerning employees which is collected through electronic monitoring may be disclosed only:

(a) With the prior written consent of the employee (such consent shall not be a condition of employment);

(b) To officers, employees, or authorized agents of the employer who have a legitimate need for the information in performance of their duties;

(c) To appropriate law enforcement agencies.

7. Non-Retaliation

No employer may discharge, discipline, or n any other manner discriminate against an employee because the employee has asserted his or her rights under this statute, assisted other employees in asserting their rights, reported violations of this statute, or participated in enforcement actions under this statute.

8. Enforcement

(a) Administrative

The Secretary of ______________ shall have the authority to investigate alleged violations of this act. Any employer who is found to have violated this act shall be fined an amount not to exceed $_____.

(b) Private Right of Action

Any person whose rights under this act have been abridged may file a civil action. Any employer that violates the provisions of this act shall be liable to the person aggrieved for special and general damages, together with attorney's fees and costs.

(c) Injunctive Relief

Any employer that commits, or proposes to commit, an act in violation of any provision of this act may be enjoined therefrom by any court of competent jurisdiction.

9. Waiver of Rights

The rights provided by this act may not be waived by contract or otherwise, unless such waiver is part of a written settlement to a pending action or complaint.

 ORGANIZATIONS SUPPORTING LEGISLATION TO RESTRICT ELECTRONIC MONITORING OF EMPLOYEES

AFL-CIO
815 Sixteenth Street, N.W.
Washington, D.C. 20006
202-637-5091
Contact: Byron Charlton

Communications Workers of America
501 3rd Street, N.W.
Washington, D.C.
202-434-1315
Contact: Lou Gerber

9 to 5, National Association of Working Women
1430 W. Peachtree St., Suite 610
Atlanta, Georgia 30309
404-876-1604
Contact: Cyndia Cameron

Coalition on New Office Technology
650 Beacon St., 5th Floor
Boston, Massachusetts 02215
617-776-2777 or 617-247-6827
Contact: Hillary Marcus

Service Employees International Union
1313 L. St., NW
Washington, DC 20005
202-898-3288
Contact: Skip Roberts

National Consumers League
1701 K St., NW, Suite 1200
Washington, DC 20006
202-835-3323

Contact: Cleo Manuel or Daniel Helfman
Electronic Privacy Information Center
666 Pennsylvania Ave., SE, Suite 301
Washington, DC 20003
202-544-9240

Contact: Mark Rotenberg
American Federation of Government Employees
80 F St., NW, 9th Floor, Legislation
Washington, DC 20001
202-737-8700

Contact: John Threlkeld
American Federation of State, County and Municipal Employees
1625 L St., NW
Washington, DC 20036
202-429-1178

Contact: Caryl Yontz
American Federation of Teachers
555 New Jersey Ave., NW
Washington, DC 20001
202-879-4400

UNITE, The Union of Needletrades, Industrial and Textile Employees
888 16th St., NW, Suite 303
Washington, DC 20006
202-347-7417

United Auto Workers
1757 N St., NW
Washington, DC 20036
202-828-8500
Contact: Eula Tate

NOTES:

 1 "High-Tech Surveillance: The Boss May Be Watching," USA Today, Mar. 14, 1990, p.11B.

 2 "The Electronic Sweat Shop: How Computers and Cupidity Are Turning Your Office Into a High-Tech Nightmare," Washington Post, Jan. 3, 1988.

 3 "Big Brother in the Workplace," CWA News, Oct. 1986, Vol. 45, p. 6-7.

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